Buildings denied permit after deciding high-rise building would not comply with State law. In 1999, the Department of Housing Preservation and Development designated a five-story townhouse at 330 West 86th Street as an Urban Development Action Area Project (UDAAP). HPD then sold the property through its Asset Sale Program to the building’s tenants. Two years later, Robert Ricciardelli purchased the property with the intention of demolishing the townhouse and building a high-rise apartment building on the site’s narrow lot. The property’s deed contained language tracking the State’s Urban Development Action Area Act and restricted the owner to rehabilitating or conserving the existing dwellings or constructing new one- to four-unit dwellings as permitted by zoning.

In 2008, Ricciardelli applied to Buildings for a permit to build an as-of-right, four-unit structure seventeen stories high. Objecting to the plans for such a strange building, Buildings interpreted the deed, which applied to subsequent owners, as only permitting the construction of a one- to four-unit, low-rise building. Buildings determined that the plans would not comply with the Act because the seventeen-story tower met the building code’s definition of a high-rise structure.

Ricciardelli appealed to BSA, arguing that nothing in the Act or the deed imposed a height restriction on future construction of a four-unit structure on the site. He claimed the Act only limited the new construction to one- to four-unit dwellings allowed under existing zoning. Riccardelli further argued that Buildings only had the authority to enforce the technical standards found in the building code, the zoning resolution, and the multiple dwelling law. He asserted that HPD maintained authority over the Act’s administration and enforcement.

On April 20, 2010, BSA granted the appeal and reversed Buildings’ decision. BSA found that the language of the Act, as incorporated in the deed, did not impose a height limitation. It also found that nothing in the case law or the Act’s legislative history supported Buildings’ contention that the building code’s definition of low-rise should be read into the Act to limit the height of the proposed building. BSA did not address the extent of Buildings’ authority to enforce the Act because it found that the underlying issue was whether Ricciardelli could build a structure that exceeded the building code’s definition of low-rise.

After requests from HPD and two neighboring buildings, BSA reopened its April determination.

At a June 15 hearing, HPD Deputy General Counsel Ken Kurland asked BSA to modify, but not reverse, its prior decision by limiting its analysis to whether Buildings had the authority to enforce the Act. Kurland said BSA went beyond its purview when it ruled that neither the Act nor the deed imposed a height limitation. He also expressed concern that BSA’s initial interpretation would prejudice HPD in potential future enforcement actions.

Vice Chair Christopher Collins asked whether HPD could simply insert more explicit language into the deeds of future projects so that BSA’s original interpretation would not affect future dispositions. Kurland responded that there were many existing buildings that went through the accelerated UDAAP process with deeds containing language similar to the subject property.

BSA adopted a modified determination, finding that Buildings did not have the authority to enforce the Act in this case. BSA ruled that the Act was related to policy and process, not technical regulations, pointing out that Buildings would not generally be aware that a property was subject to the Act because it is not one of the criteria identified in Buildings applications or available in the Buildings Information System. BSA acknowledged that there might have been provisions of the Act within Buildings’ purview which were not considered in the current appeal. Because it had already determined that Buildings did not have the authority to enforce the Act in this particular case, BSA declined to evaluate whether the Act or the deed actually imposed any height restrictions.

CITYLAND Comment: In 2008, Ricciardelli commenced parallel litigation seeking a declaration that the deed restriction had been extinguished because the building had been rehabilitated. The litigation is ongoing. 7 CityLand 15 (Feb. 15, 2010).